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Wednesday, May 2, 2012

Part I: Motions Filed by Lewis and Alshdaifat in U.S. v. Khouli et al. Take Aim at the Government -- SLAM Forfeiture Lawsuit and Sotheby's Cambodian Case Cited

A federal grand jury sitting in the Eastern
District of New York indictedantiquities collector and businessman Lewis as well as ancient coin dealer Alshdaifat for their roles in an alleged antiquities trafficking conspiracy. They are presumed innocent. Their efforts appear more vigorous
now that a third co-defendant, antiquities dealer Mousa "Morris" Khouli, pleaded guilty last week. A fourth co-defendant, Ayman Ramadan, remains
a fugitive.

Joseph
Lewis’ lawyers seek to dismiss the case against their client; suppress evidence
seized by authorities from email accounts; dismiss specified counts of the
indictment; have the grand jury minutes reviewed by the court; seek to obtain
advance notice of any prior bad acts by Lewis that the prosecution may raise at
trial; and join arguments made by Alshdaifat’s attorney. Some of the arguments made by Lewis’ lawyers are
discussed here.

Lewis’
attorneys say that the evidence obtained by court issued search warrants must
be suppressed. The attorneys argue that affidavits
in support of searches of Lewis’ home and emails were misleading and contained
material omissions. “In each supporting
affidavit the government repeatedly presented exaggerated, conclusory
assertions and omitted contextually important material facts. Most blatantly, these affidavits painted Mr. Lewis
and the alleged conspirators as grave robbers trafficking in stolen property,
when the government knew that that was not true and more important, that it
lacked proof to support these allegations.”
For example the government “never disclosed the absence of proof that
any piece was stolen, preferring instead to create an aura that such proof did
exist.” The government also did not mention
anything about Lewis’ inquiries to Khouli, made in order to confirm the
provenance of an Egyptian coffin, instead implying that Lewis “asked [Mr. Mousa]
Khouli to create a false provenance ….” Had
the government presented a full picture of its evidence and not made improper
implications, Lewis’ attorneys contend that the “Magistrate Judge would have
been deeply troubled by the [search warrant] application …”

The
lawyers for Lewis protest that “the government baldly asserted . . . that ‘persons
who smuggle cultural property of questionable provenance into the United States
typically avoid detection by Customs by means of false statements . . . .” Lewis’ attorneys attack this line of
reasoning, in part, because they say that Lewis was never part of the
importation process of antiquities and because “hundreds of foreign antiquities
… lawfully exist throughout the United States despite their bearing explicitly
uncertain provenances.”

To
support their client’s claims, Lewis’ attorneys cite the recent dismissal of
the federal government’s forfeiture case in the matter of US. v. Mask of Ka Nefer Nefer: “[I]t has become the practice of the government
in the antiquities field [to make assertions] without regard for the truth as
was shown recently, when the government was badly rebuffed and excoriated in a
recent effort to seize an antiquity from the St. Louis Art Museum.”

Lewis’
attorneys also contend that federal agents acted beyond the scope of the warrant
authorizing a search of Lewis’ Virginia home last year. Instead of simply taking relevant antiquities—e.g.
a Greco Roman coffin, an Egyptian nesting coffin, limestone figures, and
funerary boats—as well as related items such as documents, the agents took
items well beyond what the warrant authorized.
The attorneys claim that the seizure of documents related to Lewis’
insect collection, personal documents, and more was outside the scope of the
warrant’s authority. The lawyers state
that “U.S. Fish and Wildlife Service agents were inappropriately invited to
participate, undoubtedly contributing to the massive number of unrelated and
unauthorized seizures.” The only way to
cure the problem of an overly broad execution of a search warrant is to
suppress the evidence obtained by it, the lawyers argue.

Attorneys
for Lewis further argue that the case against their client should be dismissed
because of government excesses. They
urge the court to drop the criminal case against Lewis because of the alleged
misconduct described above, because of reckless media statements, and because of
selective prosecution. The attorneys say
that Lewis has been unfairly characterized in the press by government
misrepresentations, and that there is “an overall campaign to harm Joe Lewis” as
illustrated by “damaging accusations” made to CNN, The New York Times, and elsewhere.

Lewis
has also been unfairly targeted for prosecution, they say. “Indeed, outside of this case, the number of
traded antiquities with dubious , questionable or unknown provenances are too
numerous to count and yet none of those
sellers or buyers have been prosecuted based on questionable provenance
alone—the only factor here,” the lawyers argue. (Emphasis in the original). To further illustrate the claim, Lewis’
lawyers point to the lack of prosecution occurring in the Sotheby’s case involving
forfeiture of a Cambodian statue.

Legal
counsel also asks the court to dismiss the money laundering count against Lewis,
in part, because the charge is not based on Lewis paying money for the importation
of cultural property.

Because
Customs seized the components of an Egyptian nesting coffin in Newark, New
Jersey, the case should also be dismissed for improper venue. The court for the Eastern District of New
York does not cover cases arising in Newark, Lewis’ lawyers say.

Attorneys
for Lewis conclude by asking the court to review the transcript of the grand
jury session. Normally grand jury
proceedings are confidential. But the
attorneys state that the government’s excesses were so pervasive in this case that a judge should
review the testimony given to the grand jury.

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